In many criminal cases, the police and the defendant have very different versions of the events that led up to an arrest. Routinely, a client comes into our office and explains what happened and then some time later – maybe months later – police reports are authored and the police describe something very different. Also, with personal injury cases, there is frequently a dispute about how an incident or accident occurred and how the scene looked with police arrived, what was said to police, location of debris, etc.
The best way to determine what really happened is to look at the video recordings, if they exist. Video of an incident, altercation, or potential crime is not always available. If there is a private business, traffic light, or government building in the area with a surveillance camera then there may be video. But very often the footage gets over-written before it is preserved or the camera simply didn’t capture the events. It would be great if all police officers had cameras on their bodies, but this is not a requirement (yet) in New Jersey and few departments have this. However, police cars frequently have a camera mounted on the front, called a dashcam, and those cameras could easily capture the events leading up to an arrest or the scene of an accident or incident. But note that it is not a requirement for cars to have those cameras and at least 50% of the departments in our area do not have them. State police, however, have them on their vehicles.
The problem with police dashcam footage is that it can be difficult to obtain, even when it does exist. Simply put, police departments and prosecutors generally will not release the footage unless it is required to be produced to a defense attorney as part of discovery in a criminal case, or in a civil case if there is a subpoena sent by one of the attorneys involved. The problem with this is two-fold: The general public cannot get access at all; the parties involved in a criminal matter or civil case will not get the video until months after the event occurred. This delay is particularly unfair to litigants in cases because it prevents their attorneys and experts from properly investigating an incident in the early stages.
Most people in New Jersey have heard of the Open Public Records Act, which allows the public access to public records. However, there are many exceptions and the police and prosecutors frequently argue that dashcam video is not subject to OPRA because it is part of an ongoing investigation – an oft-cited exception to OPRA. But the Appellate Division recently ruled that police dashcam videos cannot be withheld based on the “ongoing investigation” exception to OPRA. Rather, the police and/or prosecutor must produce those videos in response to anyone’s OPRA request. They also ruled that production of the videos would not violate anyone’s right to privacy because the footage is captured in a public place (like a roadway or parking lot). In this case, Paff v. Ocean County Prosecutor’s Office, the plaintiff runs a website focused on public affairs and requested video of a traffic chase and stop, which resulted in the driver being charged with eluding police (among other things) and the police officer charged with official misconduct, aggravated assault, and improper use of a police dog. The Appellate Division highlighted the great deal of public interest in releasing a video depicting these events, especially in light of the national debate regarding allegations of police misconduct.
Notably, there was one dissenting judge in the Appellate Division, which means that the Prosecutor’s Office is entitled to appeal the decision to the New Jersey Supreme Court, if they so choose.
